PRESENT: Carrico, C.J., Compton, Lacy, Keenan, Koontz, and 

Kinser, JJ., and Poff, Senior Justice 

SHELBY INSURANCE COMPANY 

 OPINION BY 

v. Record No. 971275 SENIOR JUSTICE RICHARD H. POFF 

 February 27, 1998 

EDWARD A. KOZAK, ET AL. 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

James B. Wilkinson, Judge 

 In this appeal from a judgment for the plaintiff in a 

second jury trial, the principal issue is whether the trial 

court erred in limiting that trial to the issue of damages. 

 Edward A. Kozak (the plaintiff) filed a motion for judgment 

against Eyad Bn-Khalifa (the defendant) claiming $1.5 million in 

damages for personal injuries sustained in an automobile 

collision. The plaintiff served the motion upon both the 

defendant and Shelby Insurance Company (Shelby), which provided 

uninsured motorist coverage to the plaintiff’s employer, Daniel 

& Osborne Irrigation. 

 The accident occurred in Richmond near the middle of the 

intersection of Augusta Avenue and Kent Road. The speed limit 

on each road is 25 m.p.h. Traffic running east and west on 

Augusta is controlled by stop signs erected at the intersection. 

The defendant was driving a passenger car east on Augusta 

approaching Kent. The plaintiff was operating his employer’s 

pickup truck north on Kent approaching Augusta. 
 The investigating officer testified that the damage to the 

pickup was “to the full front of it”; that the damage to the car 

was “[t]o the right side, the right side, all to the right 

side”; and that the defendant’s east-bound car had come to rest 

on the curb at the corner opposite the point of collision, 

facing in a westerly direction. The officer said that the 

defendant estimated his speed approaching the intersection at 25 

m.p.h. and that he said he “never saw the sign.” In answer to 

the officer’s inquiry, the plaintiff said that he had approached 

the intersection at 20 m.p.h. 

 The plaintiff testified at trial that his speed was 

“twenty-five miles per hour tops”; that, when he was “2 car 

lengths” from the intersection, he saw the defendant’s car 

“[m]aybe 6 car lengths back”; and that he had “seen the stop 

sign” on Augusta but did “not know for sure” whether the 

defendant had stopped before he entered the intersection. Asked 

by his counsel if he had testified earlier that he had been “hit 

right in front of the driver’s door on your truck”, the 

plaintiff said that “the impact was on the left front of my car. 

I don’t say it was in my door. If I did, that was a mistake.” 

 The plaintiff then described the injuries he had sustained 

in the collision, the medical treatment he had received, the 

suffering he had endured, the medical expenses he had incurred, 

and the wages he had lost during his convalescence. He had 

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received $75,925.93 in medical bills, and he claimed $42,240 in 

lost wages. 

 The defendant testified that he was travelling at a speed 

of 25 m.p.h. approaching the intersection. Asked to explain his 

“version of the story of this accident”, the defendant said: 

 Okay. Before I get to that intersection there is a 

lot of cars parked on my right. So I stop at the stop 

sign. I looked to the left, then to the right, then to the 

left again. Both was clear for me, then I moved to the 

middle of the street. Before I get to the middle, . . . my 

friend was shouting my name and the accident happened. 

 

 Aiman Al-Ammir, a passenger in the front seat of the 

defendant’s car, testified that the defendant “stopped at the 

stop sign”; that both the defendant and he “looked both ways”; 

and that he “didn’t see any cars.” He said that, when they had 

“almost passed the middle of the intersection”, he saw the 

pickup “coming fast”; that he “yelled” out the defendant’s name; 

that “the collision took place”; and that “[o]ur car was turned 

like 180 degrees.” 

 At the conclusion of all the evidence, the plaintiff moved 

to strike the defendant’s evidence and submit the case to the 

jury limited to the question of damages. The trial court 

overruled that motion and instructed the jury on all issues 

related to both liability and damages. 

 The jury returned a verdict awarding the plaintiff “damages 

at $50,000.00 with no interest.” The plaintiff moved the court 

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to set the verdict aside as inadequate and to limit a new trial 

to the issue of damages. The defendant asked the court to set 

aside the verdict and grant a new trial on all issues. The 

trial court granted the plaintiff’s motion. The second jury 

returned a verdict awarding the plaintiff $400,000 in damages, 

and we awarded Shelby an appeal. 

I 

 In one of three assignments of error, Shelby contends that 

the trial court erred in limiting the second trial to the issue 

of damages. 

 In support of a motion to set aside the first verdict, the 

plaintiff’s counsel argued in the trial court that “it’s a 

compromise verdict” and that “[a] verdict of less than the 

specials, by our Supreme Court, cannot stand.” Responding to 

that argument, the trial court said, “My rulings have been if 

the special damage is uncontested and [the verdict] is way below 

the special damages, the Court sets the verdict aside and only 

set [sic] the case for retrial on damages”. 

 We find no error in the trial court’s denial of the 

plaintiff’s motion to submit the case to the jury at the first 

trial limited to the question of damages and in granting the 

defendant’s instruction on the definition and effect of a 

plaintiff’s contributory negligence. Nor do we find error in 

the court’s decision to set aside the verdict in the first 

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trial. But we are of opinion the court erred in limiting the 

issue in the second trial to damages. 

 The trial court apparently applies its rulings with respect 

to setting aside verdicts and limiting the retrial to damages 

only to cases in which “the special damage is uncontested and 

[the verdict] is way below the special damages”. However, those 

rulings overlook the decisions of this Court in cases in which 

it appears that the inadequacy of the damage award was the 

result of a compromise reached by the jury. 

 In Rawle v. McIlhenny, 163 Va. 735, 177 S.E. 214 (1934), we 

defined the rules with respect to setting aside verdicts in five 

classes of cases. Concerning the class relevant here, we said: 

 In the fifth class of cases where . . . the evidence 

with reference to liability has probably exerted a material 

influence upon the jury in determining the amount of the 

verdict, or the evidence warrants the inference that, 

instead of deciding the question of liability, the jury has 

arbitrarily determined to make both parties bear a part of 

the burden of the injury, . . . [and] the court sets aside 

a verdict of this class, it should grant a new trial on all 

issues. 

 In all five classes a sound discretion is vested in 

the trial court as to whether . . . a new trial should be 

granted upon all issues, or limited to the question of 

damages . . . . However, in the exercise of this 

discretion it is always to be borne in mind that, before a 

new trial should be limited to the amount of damages, it 

should be reasonably clear that the misconduct or 

misconception of the jury from which the inadequacy of the 

verdict has resulted, has not extended to its determination 

of the question of liability as well as to its 

determination of the amount of damages. 

163 Va. at 750-51, 177 S.E. at 221. 

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 The issue of liability at the first trial was contested. 

The jury may have accorded the recollection of the investigating 

officer that the defendant said at the time of the accident that 

he had not seen the stop sign greater weight than the testimony 

of the defendant and his friend. And, considering the testimony 

concerning the location of the damage to the respective vehicles 

and the force of an impact sufficient to turn the defendant’s 

car from an eastward course to a westward heading, the jury 

could have rejected the plaintiff’s testimony that he was not 

exceeding the 25 m.p.h. speed limit as he approached and entered 

the intersection. 

 Applying the principles defined in Rawle, we will reverse 

the ruling limiting the issue in the second trial to damages and 

remand the case for a new trial on all the issues. 

II 

 In another assignment of error, Shelby contends that the 

trial court “erred in the first trial by refusing to admit the 

estimate of the Plaintiff’s speed by [the defendant’s] 

passenger.” Because that question may arise in a new trial on 

remand, we will consider it now. 

 Al-Ammir, the passenger in the defendant’s car, testified 

that, when he first saw the pickup, it was “two and a half car 

lengths away from the middle of the intersection where we were”; 

that it was “coming fast”; and that he “yelled” out the 

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defendant’s name, and “the collision took place.” Asked if he 

could “make an estimate of the speed of the truck”, Al-Ammir 

replied, “[y]es, 45 to 50.” The trial court sustained the 

plaintiff’s objection to the answer. 

 In Moore v. Lewis, 201 Va. 522, 111 S.E.2d 788 (1960), we 

applied the rule that, “[i]n order to be competent to testify on 

the [speed of an automobile] the witness must have had a 

reasonable opportunity to judge the speed of the automobile.” 

We explained that when a witness has only a brief opportunity or 

interval of time to observe the speed of the vehicle, that fact 

affects only the weight of his testimony and not its competency. 

201 Va. at 525, 111 S.E.2d at 791. In further explanation of 

the rule, we noted that 

“[a]n estimate of the speed at which an automobile was 

moving at a given time is generally viewed as a matter of 

common observation rather than expert opinion, and it is 

accordingly well settled that any person of ordinary 

experience, ability, and intelligence having the means or 

opportunity of observation, whether an expert or nonexpert, 

and without proof of further qualification may express an 

opinion as to how fast an automobile which came under his 

observation was going at a particular time. The fact that 

the witness had not owned or operated an automobile does 

not preclude him from so testifying. Speed of an 

automobile is not a matter of exclusive knowledge or skill, 

but anyone with a knowledge of time and distance is a 

competent witness to give an estimate; the opportunity and 

extent of observation goes to the weight of the testimony.” 

Id. at 525, 111 S.E.2d at 790 (citation omitted); see also

Greenway v. Commonwealth, 254 Va. 147, 151-52; 487 S.E.2d 224, 

227 (1997). 

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 The plaintiff argues that the trial court properly found 

that Al-Ammir was not competent to estimate the speed of the 

pickup truck because he had only “a momentary glimpse of [the 

truck] some two car lengths away.” 

 In response, Shelby contends that, because Al-Ammir 

testified that he saw the truck at a specific distance prior to 

impact and that he could provide an estimate of speed, the trial 

court should have admitted his estimate and allowed the jury to 

determine what weight to accord the testimony. We agree. 

 The witness testified that he observed the automobile when 

it was two and a half car lengths away and that, moments later, 

the collision occurred. We think this testimony was sufficient 

to show that he was a person “with a knowledge of time and 

distance” and competent “to give an estimate” of the vehicle’s 

speed. Al-Ammir’s “opportunity and extent of observation” was a 

factor for the jury to consider in determining the weight to be 

accorded evidence relevant to the issue of liability. We hold, 

therefore, that the trial court erred in ruling that this 

testimony was inadmissible. 

III 

 In support of a third assignment of error, Shelby argues 

that the trial court erred in the conduct of the first trial by 

refusing to admit its proffer of a “Petition to Grant a 

Restricted Permit to Drive a Motor Vehicle” filed by the 

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plaintiff pursuant to Code § 46.2-391. The petition reported 

that the plaintiff had been “addicted to and psychologically 

dependent upon the use of alcohol”; that he had incurred prior 

convictions for driving under the influence of alcohol; and that 

his driver’s license had been suspended for a period of three 

years. The petition also stated that the plaintiff had 

“presented himself for an evaluation by the John Tyler Alcohol 

Safety Action Program” and that he “is no longer addicted to 

. . . the use of alcohol . . . and he does not constitute a 

threat to . . . others with regards to the driving of a motor 

vehicle . . . .” 

 Counsel for Shelby acknowledged at trial that he had “no 

evidence that drinking played any role in this accident.” We 

find none of record. Hence, the petition was inadmissible as 

irrelevant and prejudicial, see DeWald v. King, 233 Va. 140, 

146, 354 S.E.2d 60, 63 (1987), and we will uphold the trial 

court’s ruling in the first trial excluding Shelby’s proffer. 

 Shelby also contends that the trial court “prevented Shelby 

from proving that the plaintiff’s job required him to possess a 

license and that he was claiming lost wages during a time he did 

not possess a license.” We find no merit in that contention. 

The record of the second trial shows that the trial court 

allowed just such testimony delivered by Patrick Conner and 

Charles Osborne, respectively, the operations manager and 

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president of the plaintiff’s employer, witnesses called and 

interrogated by Shelby’s counsel. 

 In summary, we will reverse the ruling of the trial court 

in the first trial limiting the second trial to the issue of 

damages, annul the judgment entered in the second trial, and 

remand the case for a new trial on all the issues. 

Reversed and remanded. 

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